The appointment of the president of the EU Commission:
some legal and political aspects

Citation: Margaritis K., "The appointment of the president of the EU Commission:
some legal and political aspects", (2014) 20(2) Web JCLI.

Abstract

The 2014 European Parliament elections introduced a brand new
process within the institutional framework of the European Union
with reference to the appointment of the President of the
Commission. After the Lisbon amendment, article 17, par. 7 TEU
replaced article 214, par. 2 TEU with the major change being
related to the impact of the elections results in the whole
process. In particular, article 17, par. 7 states that those
results shall be taken into account by the European Council when
proposing to the European Parliament the candidate for the
Commission's Presidency.

At the same time, the process of nomination of the
Commission's President is historically pervaded by the
parliamentary system, common to the very majority of the member
states. This study aims to understand how this new procedure was
interpreted by relevant actors with respect to the binding effect
of the elections results, by analyzing the latest (and only)
case, the appointment of Jean-Claude Juncker. In addition, on the
ground of this outcome, to enlighten certain legal and political
aspects about the impact of article 17, par. 7 on the enhancement
of democratic principles in EU by examining the principles of the
parliamentary system, as well as its effect to the European
identity as a significant feature of the integration process.

1. Introduction

Between 22nd and 25th of May, the
citizens of the European Union had the opportunity to vote for
their 751 representatives in the European Parliament. One of the
major competences of the Parliament is the election of the
President of the Commission with the process being amended under
the Treaty of Lisbon. Under the new institutional framework, the
European Council, which proposes the candidates for presidency to
the Parliament, shall formulate its opinion after taking into
account the results of the electoral process.

"... taking into account the elections to the European
Parliament and after having held the appropriate consultations,
the European Council, acting by a qualified majority, shall
propose to the European Parliament a candidate for President of
the Commission. This candidate shall be elected by the European
Parliament by a majority of its component members. If he does not
obtain the required majority, the European Council, acting by a
qualified majority, shall within one month propose a new
candidate who shall be elected by the European Parliament
following the same procedure".

For further clarification of the process, two declarations
were annexed to the final act of the Intergovernmental Conference
that adopted the Treaty of Lisbon with respect to the President
of the Commission. Declaration no. 6 highlights the necessity to
respect the geographical and demographic diversity of the Union
and its member states when choosing the persons called upon to
hold the offices of President of the European Council, President
of the Commission and High Representative of the Union for
Foreign Affairs and Security Policy; [2] declaration no. 11 addresses the
responsibility of the European Council and Parliament for the
smooth running of the process leading to the election of the
President of the European Commission. The two institutions shall
conduct the necessary consultations by focusing on the
backgrounds of the candidates for President of the Commission,
taking account of the elections to the European Parliament, in
accordance with the first subparagraph of article 17, par. 7.

The issue arising from the above-mentioned change is related
to the interpretation of the term "taking into account". The main
question lies on whether the result of the electoral process has
or should have binding effect on the decision of the European
Council regarding the candidate for Commission presidency or it
simply has a consultative status. The aim of this paper is
twofold: firstly, to understand the extent of obligation on
behalf of the European Council to abide by the elections results
as illustrated in the procedure at the recent appointment of the
Commission's President and secondly, on the ground of this
paradigm, to draw conclusions about the impact that the reforms
to article 17, par. 7 have had towards enhancement of democratic
principles in EU institutional structure.

2. The latest elections' paradigm and article
17

Most of the European political parties seem to have embraced
the idea of direct interconnection between the election results
and the proposal of a candidate to the European Parliament for
the Commission's Presidency. Following their respective internal
procedures, the parties announced their candidates for the
position of the President of the Commission a few months before
the voting process. In this context, the European People's Party
(EPP) nominated Jean-Claude Juncker, the Party of European
Socialists (PES) nominated Martin Schulz, the Alliance of
Liberals and Democrats for Europe Party (ALDE) nominated Guy
Verhofstadt, the European Green Party (EGP) nominated Ska Keller
and Jose Bove and the Party of the European Left (EL) nominated
Alexis Tsipras.

This approach was in line with the position expressed by
formal EU institutions on enhancing democratic legitimacy in the
Union. More specifically, the European Parliament urged the
European political parties to nominate candidates for the
Presidency of the Commission, [3] enunciating the view of a deeper connection
between the elections and the choices of the voters by making the
alternatives more visible. Thus, political legitimacy will be
reinforced since the electorate would be acquainted with the
candidates, understand their political programs and ultimately be
well informed in order to participate in a European electoral
process. Likewise, the European Commission had repeatedly
addressed the issue as an important element in the European
integration process from a political standpoint. The nomination
of candidates by the European political parties would deepen the
debate in "european" terms by developing an agenda on the basis
of the challenges the Commission has to deal with in its coming
five-year term. In that sense, the electorate will take an
additional parameter into account when deciding for their
representatives in the Parliament related to the orientation of
another formal EU institution, the Commission in a way that
strengthens European identity. [4]

On the contrary, what could be easily observed is that the
parties that strongly oppose European integration and promote a
eurosceptic strategy denied proposing candidates for the
Commission's Presidency. More specifically, the Alliance of
European Conservatives and Reformists (ECR) strongly contradicted
to the idea of a directly elected President of the
Commission. [5] In
the same line, the now defunct, openly eurosceptic Europe of
Freedom and Democracy (EFD) did not initiate any procedure for
choosing a candidate; unsurprisingly, its political descendant,
the Europe of Freedom and Direct Democracy (EFDD) totally opposes
the process of article 17, par. 7 TEU and in principle abstains
from any relevant procedure.

The rationale lies upon the general perception of those
political organizations on the future of the Union. The
empowerment of democratic legitimacy of an EU institution
especially when confirmed by the people of Europe voting as a
body deepens integration in qualitative terms in conflict with
the traditional ethnocentric ideology. Even indirectly elected,
the President of the Commission would obtain political power
derived from the people, striking the balance between EU and
member states in favor of the former.

Besides eurosceptics, the position towards direct nomination
for Commission's President on the basis of the elections results
was not solid among the members of the rest of the European
parties. Chancellor Angela Merkel (EPP) appeared reluctant to
accept such a broad interpretation of article 17, par. 7 having
stated that there is "no automaticity between top candidates and
the filling of posts" and that after the elections there will be
"many considerations" and "many discussions". [6] Nevertheless, this opinion
mostly reflects a fear of indirect power transferring rather than
opposition to the political reinforcement of the Commission. In
fact, the binding effect of the results on the decision of the
European Council regarding the candidacy before the Parliament
substantially restricts the competences of the former in this
matter since it only essentially confirms the popular verdict.
Under this perspective, the leader of one of the politically most
influential member states is deprived of the privilege to provide
an opinion on the person taking an EU post of highest
importance. [7]

The results of the electoral process led to a relative
majority of the EPP in the European Parliament with 221 members,
taking a 29,43% of the votes, whilst the PES came second with
25,43% of the votes and 191 members in the European
Parliament. [8] In
accordance with article 17, par. 7 as interpreted by both the
European Parliament and the Commission, the candidate of the
first political party shall be given the mandate to be voted for
or against in the European Parliament expressing the verdict of
the electorate; therefore Jean-Claude Juncker shall be the first
seeking confidence from the Parliament, followed by the candidate
of the second political party, Martin Schulz, in case of negative
result.

However, the European Council did not seem ready to in
globo embrace the idea of direct interrelation between the
electoral result and the mandate before the Parliament. Although
right after the announcement of the results, most of the European
political parties agreed on giving Juncker the first
mandate, [9] the
European Council lacked the political consensus needed for such
an important political decision. [10] After longstanding discussions, an
agreement in political terms was finally reached and on June 27,
Jean-Claude Juncker was proposed by the European Council for
President of the Commission supported by 26 out of 28 member
states. [11] As
expected, Juncker's endorsement was widely supported in the
European Parliament, being elected by 422 votes in favor and 250
against in a secret ballot taking place on July 15; [12] eventually the
European Commission acquired its first President with democratic
legitimacy derived directly from the legislature as well as
indirectly from the citizens of Europe.

3. The parliamentary system

The framework of article 17, par. 7 reflects the parliamentary
system in terms of the relationship between the legislative and
the executive; in this context, the executive shall enjoy the
confidence of the legislative. For better understanding of the
purpose of the European provision, certain aspects of the
parliamentary system as a common tradition in EU member states
will follow, that enlighten the widely demanded enhancement of
democratic principles. [13]

3.1 The Commission as EU executive

Since its main competences are the exercising of coordinating,
executive and management functions [14] as well as the Union's legislative
initiative, [15]
the Commission has been widely considered to be the executive
branch of the European Union. [16] In organizational level, the independence
criterion from any member state institution set for the members
of the Commission [17] strengthens the idea of a separate executive within
the EU legal order.

Although, the evolving character of the Commission is beyond
dispute, horizontally covering more and more policy areas,
subsequent to the Union's growing competences throughout the
years, neither the institutional power, nor its political impact
could be fully compared to the functioning of a national
executive. As clearly indicated in the Treaties, [18] the definition of the general
political directions and priorities belongs to the European
Council. In other words, at Union level, the basic strategic plan
regarding the priorities within a governmental period (which
constitutes a fundamental competence of the executive in national
level) is completely out of the scope of the Commission's tasks.
The main reason for this distinction lies upon the current status
of the Union itself. Despite major changes forwarded in the
Treaty of Lisbon, [19] EU still remains in a transitional condition where
the institutions representing the member states (European
Council, Council) are highly involved in both legislative and
executive functions. This transitional character of the Union
inevitably binds its functions into a game of "political balance"
among the member states' officials in a way that ultimately
undermines the autonomy of the Union. [20] Therefore, under the current
institutional architecture, the Commission is hardly possible to
exercise executive power comparable to that being exercised in
national level. [21]

Coming back to the initial topic, despite the aforementioned
differences in competences, the Commission does resemble, to a
certain extent, to national government in terms of democratic
legitimacy. As clarified in article 17, par. 7 TEU, the candidate
for the Commission Presidency shall be elected by the European
Parliament by a majority of its component members. In addition,
the Commission is responsible to the European Parliament which
may vote on a motion of censure of the Commission in a similar
way that national governments are responsible to the respective
Parliaments; [22]
in case of a positive result under the process described in
article 234 TFEU, the Commission resigns as a body.

3.2 A reading on the member states

The aforementioned provisions affirm the confidence of the
European Parliament to the Commission under the principles of the
parliamentary model. Since the constitutional traditions in the
very majority of the member states embrace the parliamentary
system (either in the form of Republic or Kingdom), this concept
could hardly be superseded within the institutional framework of
the Union. However the very idea behind the parliamentary system
lies upon the verdict of the electorate. In that sense, the
interrelation between the results of elections and the candidacy
for the head of the executive as an aspect of the parliamentary
system is apparent in a variety of forms, either as customary or
explicitly written in the respective Constitutions.

From a comparative perspective, this outcome can be withdrawn
by examining the relevant cases in the national legal orders of
certain member states. For example, in the United Kingdom, Prime
Minister becomes the leader of the majority party in the House of
Commons subject to the approval of the latter, [23] whilst in Germany the Federal
President proposes as Federal Chancellor to the Bundestag the
candidate of the party who has achieved the broadest
parliamentary support; for that reason since the enactment of the
new Constitution in 1949, each parliamentary election has been
described as "Chancellor election". [24] In Spain, the King nominates the
President of the Government, after consultations with the
candidates of the parties, who subsequently seek the confidence
of the Congress. [25] Without being constitutionally obliged, the King
traditionally gives the mandate to the candidate whose party
holds most seats in the Congress, after the restoration of
democracy in 1977. This tradition is included in the Constitution
of Greece, where the leader of the party with absolute majority
in the Parliament shall be appointed Prime Minister; if no such
majority is guaranteed, the President of the Republic shall give
the leader of the party with a relative majority an exploratory
mandate in order to ascertain the possibility of forming a
Government enjoying the confidence of the Parliament. [26]

The rationale behind the implementation of this doctrine lies
upon two major issues. First of all, it satisfies the unbiased
political demand of governability. The ultimate purpose of the
elections is to guarantee institutional stability and
effectiveness among institutions of representation as a
prerequisite for a successful parliamentary period. Hence, in a
parliamentary system the aim of governability may be achieved
with much less effort under the endorsement of the majority
leader for the position of Head of the executive. The second
reason is mostly related to the concept of democratic legitimacy,
rather than the interconnection of institutions. Under the
principle of popular sovereignty, the people are the source of
political power which, through the electoral process is
transferred to their representatives in the legislative;
eventually, on the basis of this power the legislative provides
confidence to the executive. The appointment of the leader of the
majority party as Prime Minister (subject to the confidence of
the Parliament) illustrates an indirect form of confidence to the
executive provided by the ultimate source of political power, the
people, complementary to the direct confidence of the
legislative. In that way, the democratic legitimacy of the
institutions of representation is strengthened.

The historical development of the procedure for the
appointment of the Commission President shall be seen in
conjunction to the abovementioned second reason. According to the
pre-Lisbon institutional framework, the Council shall nominate
the person it intends to appoint as President of the Commission;
the nomination shall be later approved by the European
Parliament. [27]
As the process of European integration has been advanced, the
demand for dealing with issues of democratic deficit has been
equally increased. The purpose of the terminology used in article
17, par. 7 focuses exactly on that issue: regarding the
competence of the European Parliament, the term "approved" has
been replaced by the term "elected" for the Commission President.
An attempt of teleological interpretation reveals that the
"taking into account" clause for the elections serves the same
purpose; with the establishment of the interrelation among the
people's verdict and the endorsement before the European
Parliament, the President of the Commission obtains further
democratic legitimacy in line with the principles of the
parliamentary system.

4. Impact on European identity

An additional issue with reference to the interpretation of
article 17, par. 7 is its potential impact on the development of
European identity via advancing the role of the European
political parties and citizens in the electoral process. As
indicated in the Treaties, political parties at European level
contribute to forming European political awareness and to
expressing the will of citizens of the Union. [28] Nevertheless, as it has been
aptly argued, [29]
European political parties have not yet developed a true
"European" political identity but remain weak coalitions of the
national parties and therefore dependent on them. Issues related
to the Union are approached under national standards whereas
European political parties are generally absent.

With reference to European elections, the situation does not
differ much. The candidates for the European Parliament are
chosen under national political criteria and most significantly,
the political debate usually proceeds from the standpoint of the
respective member state, hardly associated to EU problems or
forasmuch as they reflect national needs. Consequently, the lack
of a party system offering alternatives can be easily observed in
European level, a fact that negatively affects the process of
integration. This being acknowledged, the European Commission
proposed the nomination of candidates for the office of
Commission President by political parties as a significant step
in deepening the European political dialogue. [30] Under those circumstances, the
European parties have to prepare a European agenda with reference
to their respective candidates for the Commission in advance and
on that basis participate in the election battle. Inevitably,
this approach contains a challenge to the coherence of positions
of the parties and at a second level to their reliability,
upgrading their role in the European political system.
Furthermore, from another perspective, the citizens of Europe
have the opportunity to identify a priori the candidates
for a formal EU institution of highest importance and vote
accordingly. This would constitute a unique chance for the
citizenry to choose, as a single body, their preferred one for
the position and not simply accept the one proposed by the
European Council. Thus, the President of the Commission would
emerge as a symbol of a common political will being expressed in
the most democratic decision-making process, encapsulating common
political principles and priorities within the citizens of all
member states.

5. Concluding remarks

The latest European elections' paradigm revealed a strong
disagreement in the interpretation of the Treaty provision.
Although both the European Parliament and the Commission and
(most of) the European political parties proclaimed the binding
effect of the elections results to the decision of the European
Council on the candidate for the Commission, this approach was
not commonly accepted, divulging that despite the institutional
amendments, there is a lack of political consensus preventing
further steps towards deeper European integration. At the end,
the interpretation of article 17, par. 7 turned into an issue of
political balance between diverging actors with reference to the
future of the Union.

As amended, article 17, par. 7 TEU constitutes a unique
process in the institutional history of the Union. On one hand,
the citizens of Europe have the opportunity to get drastically
involved in a "closed EU procedure"; on the other hand, the role
of the European political parties would be upgraded, expressing
European awareness in a better sense. At the end, the President
of the Commission would enjoy a higher level of democratic
legitimacy and taking into account the democratic deficit that
the Union is very much criticized of the enhancement of
democratic procedures is a major step in order to restore EU's
damaged credibility.

This conception also corresponds to the principles of the
parliamentary system that constitute the guiding lines of the
provision in general terms. Democratic legitimacy of the
Commission primarily derives from the confidence of the European
Parliament which makes the former responsible to the latter. Even
not explicitly stated, the implementation of the parliamentary
system in the member states denotes an additional indirect form
of democratic legitimacy to the executive derived from the
people. For that reason, the results of the elections for the
European Parliament as the political expression of the European
citizens are essential for the democratic functioning of the
Union. That missing piece has therefore to be added in order to
effectively and openly combat Union's democratic deficit.

Summarizing the above, the interpretation prevailed paved the
way for a new era in the institutional framework of the Union.
The citizens of Europe decided, even indirectly, for the first
time as one electoral body for a formal EU institution. A
different perception -endorsing a candidate apart from the ones
nominated by the European political parties or overriding the
candidate of the first party unilaterally on behalf of the
European Council- would constitute a peculiar situation,
essentially contra legem, as it signifies a sense of
disregard to the European political parties and the will of the
people.

In an attempt to further strengthen European identity, the
next step in a possible amendment could be the gradual
abolishment of the role of the European Council at that stage, so
that the process would end up being totally "European" without
involvement of an institution representing the member states in
an institution principally designed to exercise European
policy.

Southern, David, "The Chancellor and the Constitution" in
Stephen Padgett (ed), The Development of German
Chancellorship: Adenauer to Kohl (Hurst 1994).

Thomassen, Jacques, "Parties and Voters: The Feasibility of a
European System of Political Representation" in Bernard
Steunenberg and Jacques Thomassen (eds.), The European
Parliament: Moving towards Democracy in the EU (Rowman and
Littlefield 2002).

[1] PhD
candidate, National and Kapodistrian University of Athens,
Faculty of Law, Attorney at Law

[2] It must
be observed that the requirements of declaration no. 6 were
absolutely fulfilled with the appointment of the Polish Prime
Minister Donald Tusk as President of the European Council and
the Italian Minister of Foreign Affairs Federica Mogherini as
the Union's High Representative for Foreign Affairs and
Security Policy respectively.

[4]
Characteristically, the outgoing President of the Commission
Jose Manuel Barroso called the European political parties to
nominate candidates in order to "further Europeanise these
European elections", see the relevant citations in European
Commission - MEMO/13/2002 (12 March 2013) < http://europa.eu/rapid/press-release_MEMO-13-202_en.htm>
accessed 2 September 2014.

[5] The
Secretary General of the party, Dan Hannan, stated that
participating in the process would be to legitimize a
federalist vision of a European super-state, see Dave
Keating, "ECR: "Nobody for President"" (European
Voice, 20 February 2014) <
http://www.europeanvoice.com/article/ecr-nobody-for-president/>
accessed 7 September 2014.

[13] The
enhancement of democratic functioning of EU institutions is
an aim as indicated at the Preamble of the consolidated
version of the Treaty on the European Union, for that reason
a specific title II on democratic principles has been added
therein.

[20] This
political balance is confirmed in article 15, par. 4 TEU
which demands that the decisions of the European Council
shall be taken by consensus.

[21]
Professor Curtin uses the term "composite" to describe the
nature of the executive power in EU, see Deirdre Curtin,
Executive Power of the European Union: Law, Practices and
the Living Constitution (OUP 2009) 65.

[29]
Jacques Thomassen, "Parties and Voters: The Feasibility of a
European System of Political Representation" in Bernard
Steunenberg and Jacques Thomassen (eds.), The European
Parliament: Moving towards Democracy in the EU (Rowman
and Littlefield 2002) 15-16.